Eleventh Circuit Court of Appeals - Published Opinions

Monday, May 04, 2020

Russell: Vacating 922(g)(5) Conviction Based on Rehaif

In United States v .Russell, No. 18-11202 (May 4, 2020) (Wilson, Branch, Restani), the Court vacated the defendant’s 922(g)(5) conviction after trial based on Rehaif.

At trial, the district court excluded as irrelevant the defendant’s immigration file.  That file showed that, although he overstayed his visitor status, a U.S. citizen filed a petition to classify him as her spouse (which was granted), and he sought to adjust his status based thereon.  The first petition was subsequently withdrawn, but it is unclear whether the defendant knew that when he was arrested.  Applying plain error on appeal, the Eleventh Circuit concluded that Rehaif rendered the exclusion of his immigration file an error that was plain.  It also concluded that the defendant had shown that, but for the error, the outcome of the trial would have been different.  The Court reached that conclusion because the defendant had consistently challenged his immigration status throughout the district court proceedings, and the jury did not hear any evidence showing that he believed he was illegally present.  The Court also found that, because this error deprived him of a defense, the fourth prong of plain error was satisfied as well.

Judge Branch dissented, opining that the entire record showed that he knew he was illegally present.  She emphasized that he knowingly overstayed his visa, and he knew that he was already married elsewhere, so he knew that he could not be validly re-classified  as the spouse of a U.S. citizen.